Shri Shankar S/O Maruti Jambagi vs Karnataka Co-Operative Society ...
2023 Latest Caselaw 1952 Kant

Citation : 2023 Latest Caselaw 1952 Kant
Judgement Date : 23 March, 2023

Karnataka High Court

Shri Shankar S/O Maruti Jambagi vs Karnataka Co-Operative Society ... on 23 March, 2023

Bench: Sachin Shankar Magadum

                                                -1-
                                                          WP No. 100948 of 2023




                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                            DATED THIS THE 23RD DAY OF MARCH, 2023

                                              BEFORE
                        THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
                           WRIT PETITION NO. 100948 OF 2023 (GM-CPC)
                   BETWEEN:

                         SHRI SHANKAR S/O MARUTI JAMBAGI
                         AGE. 47 YEARS, OCC. AGRIL.
                         R/O. HARUGERI, TQ. RAIBAG,
                         DIST. BELAGAVI 591220.

                                                                   ...PETITIONER
                   (BY SRI. KIRANKUMAR CHATTIMATH, ADVOCATE)
                   AND:

                   1.    KARNATAKA CO-OPERATIVE SOCIETY LTD. HARUGERI
                         REPRESENTED BY ITS ACCOUNTANT,
                         SHRI SANTOSH S/O HANAMANT THAKKANNAVAR,
                         AGE. 39 YEARS, OCC. SERVICE,
                         R/O. HARUGERI, TQ. RAIBAG, DIST. BELAGAVI 591220

                   2.    SMT. PREMA W/O MARUTI KUMBAR
                         AGE. 43 YEARS, OCC. HOUSEHOLD,
Digitally signed
                         R/O. HARUGERI, TQ. RAIBAG,
by JAGADISH T
R                        DIST. BELAGAVI. 591220
Location: High
Court of
Karnataka,
Dharwad
Date:
                   3.    SHRI KRISHNAPPA S/O IRAPPA RABAKAVI
2023.03.24
11:57:44 +0530           AGE. 27 YEARS, OCC. AGRIL,
                         R/O. HARUGERI, TQ. RAIBAG,
                         DIST. BELAGAVI. 591220

                                                              ...RESPONDENTS
                   (BY SRI.LAXMAN T MANTAGANI, ADV. FOR R1) (R2 & R3-SERVED)

                        THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
                   227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT
                   IN THE NATURE OF CERTIORARI QUASHING ORDER PASSED BY
                   THE PRL. CIVIL JUDGE AND JMFC, RAIBAG VIDE ANNEXURE-F IN
                   EX.PETITION NO.21/2017 VIDE ANNEXURE-F DATED 20/08/2022
                   AS NULL AND VOID.
                                    -2-
                                            WP No. 100948 of 2023




     THIS PETITION COMING ON FOR PRELIMNARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:


                                ORDER

The captioned writ petition is filed by Judgment

Debtor No.1 questioning the order relating to sale

proclamation of attached property which was ordered to

be held on 18.01.2023 and the proposed sale was resolved

to be held on 20.02.2023.

2. The contention of the petitioner is that sale

proclamation attaching the property is issued without

affording an opportunity to him.

3. The petitioner claims that sale proclamation is

issued in contravention of provisions under Order XXI

Rule 66 of CPC. Firstly, he was never notified and notice

of sale proclamation was never served on him.

Respondent No.1 has initiated recovery proceedings

seeking recovery of loan amount pursuant to the award

passed by respondent No.1 holding that he is entitled to

recover a sum of Rs.4,51,340/- with interest.

WP No. 100948 of 2023

4. The captioned writ petition is filed alleging that

Executing Court has not verified as to whether sale

proclamation notice was duly served on judgment debtors.

Second limb of argument canvassed by the petitioner is

that respondent No.1/Society has not made proper

valuation of the property in question and there are other

encumbrances over the suit schedule property and

valuation of the property in question is not properly

determined. Though sale proclamation should be settled

only after notice to the judgment debtor, provisions of

Rule 66 of Order XXI of CPC should not be understood as a

notice to the judgment debtor intended to give the

judgment debtor an opportunity to raise all kind of

objections that he may have against proposed sale.

Notice under Order XXI Rule 66(2) of CPC is more

beneficial to the judgment debtor than decree holder, as it

will give an opportunity to the judgment debtor to

highlight features of the property to sell and secure fair

and reasonable price to the said property under the gab of

securing fair and reasonable price. The

WP No. 100948 of 2023

petitioner/judgment debtor cannot stall recovery

proceedings. Proclamation of sale is made for information

of intending purchaser and not of judgment debtor.

5. Be that as it may, judgment debtor No.1 is

present in the Court and if Executing Court is directed to

issue fresh proclamation after notifying Judgment Debtor

No.1 on the next date of hearing, no prejudice will be

caused to respondent No.1/Society. Since Judgment

Debtor No.1 is present before the Court, he shall appear

before the Executing Court on 31.03.2023. Application

filed by respondent No.1/Society shall be dealt with by

Executing Court bearing in mind procedure contemplated

under Order XXI Rule 66 of CPC and thereafter shall

expedite the matter as Decree Holder being a Society is

entitled to recover in terms of Award which has attained

finality..

6. For the foregoing reasons, I proceed to pass the

following:

ORDER

WP No. 100948 of 2023

a) Writ Petition stands allowed.

b) The impugned endorsement of sale proclamation is set-aside.

c) The Executing Court shall consider the application filed by respondent No.1/Society after hearing Judgment Debtor No.1 on the next date of hearing.

d) It is made clear that based on the order passed by this Court, judgment debtor No.1 will not protract recovery proceedings by seeking unnecessary adjournments.